According to the appellate court, it could not review an issue that had not first been decided by the lower court. The judge further held that Mark’s claim that Justice Nwite refused the ex parte application was not borne out by the ruling read in open court.
Justice Onyemenam also faulted Mark for relying on the enrolled order prepared by the court’s registrar rather than the judge’s ruling, stressing that the authentic record of a court’s decision is the one pronounced by the judge.
The court further held that the appeal was invalid because it was filed without obtaining the required leave of court, noting that the order directing parties to be put on notice was merely an interlocutory exercise of the trial judge’s discretionary powers in managing proceedings.
She explained that such an order could only be appealed against with the leave of either the trial court or the Court of Appeal.
The appellate court consequently dismissed the appeal as lacking merit and awarded costs of N2 million against Mark.
The court also ordered an accelerated hearing of the substantive suit pending before the Federal High Court. It directed all parties to maintain the status quo pending the determination of the case.
In the substantive suit, Gombe is asking the court, among other reliefs, to void the emergence of the Mark-led leadership of the ADC.
The other members of the panel, Justices Mohammed Mustapha and Okon Abang, concurred with the lead judgment.
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